Hattie Burford

EDCI 638- School Law

Dr. Blundell
Chapter 6 Outline/Summary/Reflection

Chapter 6: Equal Educational Opportunity: Race, Gender, and National Origin

1) The Equal Protection Clause and Racial Discrimination

a) foundation for Brown and of the quest for equality of opportunity in education
b) No State shall “deny to any person within its jurisdiction the equal protection of the laws.”
i) to treat a person or group differently from others without sufficient reason
c) When there are criterion established, the Supreme Court has decided that the burden of proof
shall fall on the plaintiff or government, examples are:
i) Race- Burden of proof is on the government to provide an extremely strong justification for
its law or policy
ii) In imposing heavy burden of proof, courts employ a test known as Strict Scrutiny
(1) a law or policy is presumed unconstitutional unless the government can show that it is
necessary to achieve a compelling state of interest and that the methd in which race is
used is to the least extent possible
(2) also used in cases involving fundamental rights
2) Historical Perspective: Equal Protection Prior to Brown
a) The Fourteenth Amendment was adopted in 1868 to protect the legal and political rights of
newly freed slaves
i) In 1880, Stauder v. West Virginia
(1) law was used to strike down a law barring African Americans from serving on juries
b) Plessy v. Ferguson
i) the Court upheld a Louisiana statute requiring “equal but separate accommodations for the
white and colored races” on trains
ii) The Court did not employ the strict scrutiny test because it had not yet been developed for
use in any kind of case.
(1) The Court placed the burden of proof on the plaintiff to show that the law was without
adequate justification
iii) The Court then rejected the plaintiff’s claim of its harmful effects
c) In 1938, in a nonracial case, the Court took its first step toward adopting the strict scrutiny test
in United States v. Carolene Products Co.
i) The Court said that the usual presumption that laws and policies are constitutional may be
weakened in cases where:
(1) The legislation concerns matters specifically prohibited by the Bill of Rights
(2) The legislation affects the right to vote or to disseminate information or interferes with
political organizations
(3) The legislation is directed toward religious or racial minorities
d) There were several cases that took steps toward eliminating the idea of separate but equal
i) None of the cases directly overturned it
e) Goesaert v. Cleary brought about a new test where the burden of proof rests with the plaintiff
i) rational basis
(1) Places the burden of proof on the plaintiff to show that the government’s policy does
not serve a legitimate purpose or that the classification is not connected in any
reasonable way to a legitimate goal
3) Racial Segregation
a) Brown v. Board of Education
Hattie Burford
EDCI 638- School Law
Dr. Blundell
Chapter 6 Outline/Summary/Reflection

i) (Brown I) 1954
(1) Rejected only de jure segregation of schools
(a) separation of the races by law
(b) The first of the Brown decisions rejected only de jure segregation
(2) de facto segregation-racial separation that occurs for other reasons
ii) Decided to reverse the Plessy v. Ferguson doctrine of “separate but equal”
iii) Stated that the segregation of white and colored children in public schools has a detrimental
effect on colored children
b) Today the Equal Protection Clause prohibits both overt and covert forms of discrimination
i) Intentional discrimination is unconstitutional whether enacted in a statute or accomplished
through administrative policies
c) Intent to Discriminate
i) Proving intent to discriminate is the key to many racial discrimination cases
ii) Plaintiffs are not required to prove directly that the government tried to subject them to
inferior treatment
iii) May be inferred from a pattern of actions whose only foreseeable consequences were
segregative or otherwise discriminatory
iv) Plaintiffs may also be assisted in their effort to prove that a school board engaged in
intentional segregation district wide by two presumptions:
(1) Where it has been shown that a district engaged in intentional segregation affecting a
substantial portion of its school, a finding that the entire district is intentionally
discriminatory is warranted absent a showing that the district is divided into clearly
unrelated units
(2) Even if the district is subdivided into unrelated units, proof of intentional discrimination
in one unit is evidence of intent to discriminate in others
(3) all that needs to be established is that “but for” the consideration of race, the decision
would have been different- reversing of groups test
d) De Facto Segregation
i) de jure segregation violates the U.S. Constitution, some state constitutions may prohibit
even de facto segregation
ii) Paynter v. State of New York
(1) court implied that the state constitution applied only to school funding inequities, not
those associated with de facto segregation
4) Remedying De Jure Segregation
a) Brown v. Board of Education (Brown II) 1955
i) Brown II reasserts the ruling that de jure segregation is illegal and orders local authorities to
make a “good faith” effort to “carry out the ruling” at the “earliest practicable date” and
“with all deliberate speed.”
ii) Succeeding the ruling, very little movement toward desegregation and little further
involvement by the Court itself
(1) In the decade following Brown, the Supreme Court issued only three additional opinions
dealing with the most blatant cases
b) Civil Rights Act of 1964
i) Prohibited racial discrimination in programs receiving federal financial assistance and barred
discrimination in employment on the basis of race, gender, and religion
Hattie Burford
EDCI 638- School Law
Dr. Blundell
Chapter 6 Outline/Summary/Reflection

ii) States refusing to desegregate faced a total cutoff of federal education funds
c) Swann v. Charlotte-Mecklenburg Board of Education
i) the desegregation plan was not working in a timely manner and therefore was sped up by
the courts
ii) the Court declared
(1) that it was permissible for the district court to adopt as a target for individual schools a
racial balance similar to the district as a whole, as long as the target did not function as a
rigid quota
(2) that it is possible as a result of segregated living patterns for a school district under a
desegregation order to maintain some one-race schools, but the school district bears
the “burden of showing that such school assignments are genuinely nondiscriminatory”
(3) that court-ordered grouping of schools and gerrymandering of school attendance zones
is permissible as a remedy for intentional segregation
(4) that mandatory within-district busing of pupils is also a permissible remedy as long as
the time or distance of travel is not “so great as to either risk the health of the children
or significantly impinge on the educational process”
(5) that once the district had achieved full compliance with a desegregation order, it would
be declared “unitary,” at which point no further remedies would be authorized
d) Milliken v. Bradley
i) District in Detroit was forced to redraw district lines to achieve the constitutional mandate
of desegregation
ii) The Supreme Court rejected the district court’s plan because it must first be shown that
there has been a constitutional violation within one district that produces a significant
segregate effect in another district
e) Milliken II
i) Supreme Court approved the district court's plan, reasoning that, in creating a
desegregation plan, it is “essential to mandate educational components where they are
needed to remedy effects of past segregation, to assure a successful desegregative effort
and to minimize the possibility of resegregation”
f) Missouri v. Jenkins
i) District court ordered a costly plan that included upgrading and modifying substandard
facilities in Kansas City, Missouri, to create a system of magnet schools.
ii) In order to make it possible the court mandated a property tax increase to a higher level
than state law allowed.
iii) Courts ruled that this could not be done even though it was lawful for them to create a
magnet school.
5) Other Forms of Racial Discrimination
a) Students may claim racial discrimination in standardized testing, tracking and ability grouping,
disciplinary policies, or other areas of school policy and practice
b) Statistics showing that the burden of a particular policy or practice falls disproportionately on
members of one race may be part of a showing of unconstitutional discrimination
i) not sufficient without supporting evidence of discriminatory intent
c) Hawkins v. Coleman
i) Black students in the school district are receiving proportionately more suspensions than
white students
Hattie Burford
EDCI 638- School Law
Dr. Blundell
Chapter 6 Outline/Summary/Reflection

ii) Courts ruled that the program they had in place for suspensions was racist due to the
disproportionate number of Blacks being suspended and given corporal punishment
6) Affirmative Action and Voluntary Racial Integration
a) Grutter v. Bollinger
i) Michigan Law School changed its application review process to become more racially diverse
ii) A white student who was not admitted challenged that not all the best applicants are
getting in
iii) Because the Law School considers “all pertinent elements of diversity,” it selects
nonminority applicants who have greater potential to enhance student body diversity over
underrepresented minority applicants
b) Gratz v. Boffinger
i) rejected the undergraduate admissions policies of the University of Michigan. Admission
ii) unlike the law school policy, the undergraduate system was “not narrowly tailored to
achieve the interest in educational diversity”
c) Parents Involved in Community Schools v. Seattle School District No. 1
i) Students were assigned to several schools based on race to keep a predetermined
percentage of racial balance at particular schools within the district
ii) The Court ruled that this was not legal to work backwards to racially balance the school
iii) Justice Thomas's concurring opinion claimed that the Equal Protection Clause establishes
the doctrine of “color-blindness.”
(1) He would prohibit any student-assignment policy that considers race at all, unless
narrowly tailored to remedy past intentional segregation or discrimination
(2) Justice Kennedy offered two other options
(a) race not being a dominant factor in the process
(b) adopt mechanisms that are race conscious but do not lead to different treatment
based on a classification that tells each student he or she is to be defined by race
7) The Equal Protection Clause and Gender Discrimination
a) In 1976, the Court retreated partway from the use of strict scrutiny in gender cases, adopting
instead substantial relation or the middle-level test
i) Stricter than rational basis
ii) More lenient that strict scrutiny
iii) To trigger the use of the substantial-relation test, the plaintiff must first establish the
existence of either over gender discrimination or covert gender discrimination
iv) then the burden of proof shifts to the government to establish that its policy serves a
purpose that is both legitimate and important and that treating males and females
differently is substantially related to that purpose
v) The law will be declared unconstitutional if the government fails to meet its burden
b) Vorcheimer v. School District of Philadelphia
i) A teenage girl wanted to attend an all boys high school when there was an equally
prestigious all girls school as well
ii) The court rejected her claim
c) Mississippi University for Women v. Hogan
i) A male plaintiff objected to the female-only admissions policy of a state nursing school
ii) Supreme Court found the state’s position deficient on both criteria of the middle-level test
Hattie Burford
EDCI 638- School Law
Dr. Blundell
Chapter 6 Outline/Summary/Reflection

d) The most common gender discrimination cases in elementary and secondary schools involve sex
segregation in sports or occasionally, in student organizations
i) Female plaintiffs have their strongest chance of winning a case under the Equal Protection
Clause when they have been totally excluded from playing a sport because of the absence of
a girls’ team
ii) The legal situation is even less clear regarding boys seeking to participate in noncontact
girls’ sports
iii) When there is no boys’ team available, male plaintiffs have met with mixed results
8) Federal Anti-Discrimination Statutes
a) Title VI of the Civil Rights Act of 1964 (race and ethnicity)
i) No person in the United States shall, on the grounds or race, color, or national origin, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance
ii) Supplements the Equal Protection Clause in three ways
(1) can be enforced by the Attorney General of the United States, by any federal
department or agency that awards federal funds to schools districts, or through
litigation brought by an individual
(2) Proof of intent to discriminate not be necessary
(3) Applies to private as well as public schools provided they receive federal funds
b) Title IX of the Education Amendments of 1972(gender and discrimination)
i) No person in the United States shall, on the basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any education program or
activity receiving Federal financial assistance
ii) The extensive regulations issued to enforce Title IX prohibit the following:
(1) Admission tests that disproportionately affect one sex, unless they can be validated as
reliable predictors of educational ability and as the least prejudicial means of prediction
(2) Codes of student conduct that treat males and females differently
(3) Counseling materials that discriminate on the basis of gender, for example, by
encouraging different courses or occupations for different sexes
(4) Rules concerning marriage or pregnancy that treat students differently on the basis of
sex
(a) Student may not be denied educational benefits because they are pregnant
c) Athletics
i) No person shall, on the basis of sex, be excluded from participation in, be denied the
benefits of, be treated differently from another person or otherwise be discriminated
against in any interscholastic, intercollegiate, club or intramural athletics offered by a
recipient
(1) no recipient shall provide any such athletics separately on such basis
ii) a recipient may operate or sponsor separate teams for members of each sex where
selection for such teams is based upon competitive skill or the activity involved is a contact
sport
iii) A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural
athletics shall provide equal athletic opportunity for members of both sexes
(1) In determining whether equal opportunities are available, here are the factors:
Hattie Burford
EDCI 638- School Law
Dr. Blundell
Chapter 6 Outline/Summary/Reflection

(a) Whether the selection of sports and levels of competition effectively accommodate
the interests and abilities of members of both sexes
(b) The provision of equipment and supplies
(c) Scheduling of games and practice time
(d) Travel and per diem allowance
(e) Opportunity to receive coaching and academic tutoring
(f) Assignment and compensation of coaches and tutors
(g) Provision of locker rooms, practice and competitive facilities
(h) Provision of medical and training facilities and services
(i) Provision of housing and dining facilities and services
(j) Publicity
9) Racial and Sexual Harassment
a) In addition to hostile-environment harassment, the regulations also recognize another form of
sexual harassment known as quid pro quo
b) The Equal Protection Clause applies only when the offender is a school official, not a fellow
student, and only when the victims can show that the offending conduct was intentionally
discriminatory against their race or gender
c) Due Process Clause also may be used to object to sexual harassment when there has been a
significant violation of bodily integrity and again only when the offender is a school official
d) Where there has been threatened or actual bodily harm or violation, the racial or sexual
harassment may constitute assault or battery under state civil and criminal law
e) Most effective protection is usually found in the federal statutes
f) Supreme Court has stated that sex between a student and a school employee usually constitutes
sexual harassment even if the student consents.
g) Once a school has the information they are found deliberately indifferent if it takes no steps to
investigate, to admonish or punish the harassers, and to prevent recurrence
10) English Language Learners
a) children who are non-English proficient or limited English proficient
b) phrased in the language of equity, discrimination, and civil rights
c) The first federal effort to address the civil rights of ELL students was based on Title VI of the Civil
Rights Act of 1964
i) Districts in violation of Title VI could lose all their federal funds
d) After the Lau v. Nichols case, Equal Educational Opportunity Act (EEOA) was adopted by
Congress
i) “[N]o State shall deny equal educational opportunity to an individual on account of his or
her race, color, sex, or national origin, by … the failure by an educational agency to take
appropriate action to overcome language barriers that impede equal participation by its
students in its instructional programs.”
e) factors to be considered in determining whether the steps taken are reasonable
i) number or proportion of limited English proficient individuals
ii) their frequency of contact with the program
iii) the nature and importance of the program
iv) the resources available
f) Castaneda v. Pickard
Hattie Burford
EDCI 638- School Law
Dr. Blundell
Chapter 6 Outline/Summary/Reflection

i) plaintiffs charged that the school district unlawfully discriminated against them by failing to
implement adequate bilingual education to overcome the linguistic barriers that impede the
plaintiffs' equal participation in the educational program of the district…
g) Castaneda employed a three-part test for determining whether a school is meeting its
obligations under EEOA:
i) The school must adopt a program “informed by an educational theory recognized as
sound by some experts in the field or, at least, deemed a legitimate experimental
strategy.”
ii) The actual programs and practices of the school must be “reasonably calculated to
implement effectively the educational theory adopted by the school.”
iii) The school must be able to show that language barriers are being overcome.
h) Federal law also requires that local school districts offering a federally supported
program shall, not later than 30 days after the beginning of the school year, inform a
parent or the parents of a limited English proficient child identified for participation in, or
participating in, such program of the following:
i) the reasons for the identification of their child as limited English proficient and in
need of placement in a language instruction educational program;
ii) the child's level of English proficiency, how such level was assessed, and the status of
the child's academic achievement;
iii) the method of instruction used in the program in which their child is, or will be,
participating and the methods of instruction used in other available programs,
including how such programs differ in content, instruction goals, and use of English
and a native language in instruction;
iv) how the program in which their child is, or will be participating, will meet the
educational strengths and needs of the child;
v) how such program will specifically help their child learn English, and meet age
appropriate academic achievement standards for grade promotion and graduation;
vi) the specific exit requirements for such program, the expected rate of transition from
such program into classrooms that are not tailored for limited English proficient
children, and the expected rate of graduation from secondary school for such program
if funds under this title are used for children in secondary schools;
vii) in the case of a child with a disability, how such program meets the objectives of the
individualized education program of the child; and
viii) information pertaining to parental rights….
11) Classification by Age and Ability
a) age and ability grouping is an educationally sound practice that improves the efficiency
of the school and helps to ensure, by and large, that children and programs are
appropriately matched
b) Courts employ the rational basis test to resolve these disputes
i) the plaintiffs must prove either that the age or ability grouping criteria do not serve
any legitimate purpose or that the classification is wholly unrelated to its alleged
purpose
Hattie Burford
EDCI 638- School Law
Dr. Blundell
Chapter 6 Outline/Summary/Reflection

Imber, M., Van Geel, T., Blokhuis, J., & Feldman, J. (2014). Education law (5th ed.). New

York:

Routledge

Reflection:

Racial discrimination, sexual harassment, and national origin discrimination are all heavily discussed
topics in our world today. With the many immigration issues that are currently taking place, race and
national origin are at the forefront of many arguments. As educators, we need to be aware of these
issues in the school. The school district that I teach in is a very diversely populated school district, with
the majority being minorities. I have not personally witnessed any serious racial or gender issues, but I
do know that they happen. The other issue that is highly controversial today is sexual harassment. The
widespread “me too” has shown numerous cases in which sexual harassment has occurred, where
several people knew about it, but did nothing to stop it. Teachers, administrators, and counselors all
need to be careful when meeting with student one-to-one. I have always been told to leave my door
open, have someone else in the room with you, document everything that was mentioned in the
conversation, etc. We cannot be too careful with these kinds of things that concern reputations and
other important matters.